The Practice Skills Toolkit: Tips on ADR, Discovery, and Ethics

by First Chair Press

Overview

Practice Skills Toolkit ADR is a compilation of articles, chosen by younger practicing lawyers, which struck them as helpful guides in the practice of law. These articles, arranged under the topics of Ethics, Discovery, and Alternative Dispute Resolution (ADR), are timeless and universal in their appeal. In the world of increasingly complex discovery practice, increasing ADR, and serious attention to ethics guidelines, knowledge of these three areas is essential. Whether at a large or small firm, in-house or outside counsel, rural or urban, and regardless of practice area, each of these topics will affect all litigators.

Product Details

ISBN-13:	9781614389668
Publisher:	American Bar Association
Publication date:	06/10/2014
Pages:	471
Product dimensions:	6.00(w) x 9.00(h) x 1.10(d)

About the Author

The Practice Skills Toolkit is a compilation produced by the First Chair Press, part of the Section of Litigation of the American Bar Association. The ABA is based in Chicago, IL.

Table of Contents

Introduction vii

Part 1 Alternative Dispute Resolution (ADR) 1

International Arbitration 3

Young Lawyers: Is the Arbitration Domestic or International in Scope? 3

The Restatement of the US. Law of International Commercial Arbitration in Context 6

Breaking into International Arbitration 12

Coverage Mediation 15

Coverage Mediations: Are They Really That Different? 15

Mandatory Arbitration Provisions-Not in My State: McCarran-Ferguson, the FAA, and Reverse Preemption 31

Mediator Selection 51

Choosing the Right Mediator 51

Ten Things Lawyers Love/Hate about Mediators 55

General 65

Mediate, Arbitrate, or Litigate Disputes? 65

The Fundamentals of Mediation Practice; A Brief Refresher 71

Young Lawyers: Why Not Use Mediation to Sharpen Your Trial Skills? 76

Can an Arbitrator Order Pre- hearing Discovery from a Nonparty? 80

Establishing the Arbitrators "Evident Partiality" 85

The Potential for Mandatory Settlement Classes in Broker-Dealer Suits 89

Part 2 Discovery 99

Deposition and Witness Preparation 101

Deposition and Trial Testimony in "Med Mai" Litigation: A Survival Guide for Young Lawyers and Their Clients 101

Preparing for and Taking an Effective Deposition, Part One 110

Preparing for and Taking an Effective Deposition, Part Two 116

Can I Get a Witness: Obtaining Out-of-State Deposition Subpoenas 124

Deposition and Witness Preparation Tips Learned from The Office 130

How to Take a Deposition 135

So You Want to Depose Opposing Counsel? 139

Taking Depositions through an Interpreter 157

Electronic Data and E-Discovery 165

Undue Burden, Proportionality, and Cost-shifting in E-Discovery 165

Pricing Processing in E-Discovery: Keep the Invoice from Being a Surprise 172

The Risks of Electronic Data Over-preservation 181

The Economies of Internalizing Digital Document Management 187

Electronic Fraud in Copyright Litigation 193

A Model Order Regarding E-Discovery in Patent (and Other?) Cases 200

The Fifth Amendment Versus Compelled Production of Encrypted Data 207

Expert Witnesses 213

The 2010 Expert Witnesses Rule Amendments 213

Influence Your Verdict by Changing Jurors' Perceptions of Expert Witnesses 221

Using Amended Rule 26 to Get the Most Out of Experts 227

Expert Approaches 236

Does Daubert Apply to Expert Evidence Submitted at the Class Certification Stage? 250

Increased Protection for Communications with Experts under Amended Rule 26 255

Proving Positional Bias 263

Information Technology 271

The Boundaries of Computer Forensics 271

Rules and Regs Pertinent to Computer Investigations 278

Advice for Young Litigators: Engage with IT People 283

Discovery Strategies 289

Defensive Strategies in Discovery: A Refresher 289

The Duty to Disclose: Rule 37(c) and Self-executing Sanctions 295

Evidence Preservation 305

For Young Lawyers: "Preservation" in the Constant Litigation Environment 305

The Duty to Preserve: Victor Stanley and Its Progeny 311

Is Rule-making a Cure for Preservation Headaches? 321

International 327

Depositions in Mexico for U.S. Litigation 327

Getting Discovery When It Is on the Other Side of the World 334

Discovery Practice in Conflict with China's State Secrets Law 339

Part 3 Ethics 347

Who Is Being Represented? 349

Charting a Clear Course in Corporate Internal Investigations 349

Interviewing Corporate Client Officers and Employees: Ethical Considerations 362

The "I Am Not Your Lawyer" Case 373

Social Media-Websites, Blawgs, Facebook, and Twitter 381

Lawyer Websites: ABA Formal Opinion 10-457 and Beyond 381

Ethics of Using Social Media during Case Investigation and Discovery 389

Ethical and Liability Risks Posed by Lawyers' Use of Social Media 397

Ethical Considerations in Rainmaking 410

Witness Preparation, Settlement Negotiation, Post-hearing Briefs 417

Ethical Preapration of Witnesses for Deposition and Trial 417

There Are Limits: Ethical Issues in Settlement Negotiations 429

Evidence, Ethics, Etiquette: Comment on Testimony in Post-hearing Briefs 436

General 441

Litigation 101: Ethics Related to the Use of Contract Attorneys 441

A Guide for Creating Your Own Public Interest Legal Organization 447

Malpractice and Ethical Traps for the Unwary Junior Lawyer 450

Confidentiality Obligations of Insurance Defense Counsel 455